Ali v. Sessions et al
ORDER granting 3 Motion for Temporary Restraining Order. IT IS HEREBY ORDERED THAT: 1. Petitioner Yonis Ali's motion for a temporary restraining order 3 -- which the Court construes as a motion for a preliminary injunction -- is GRANTED . 2. Respondents, and all of their respective officers, agents, servants, employees, attorneys, and persons acting in concert or participation with them, are ENJOINED AND RESTRAINED from removing or causing the removal of petitioner Yonis Ali from the United States until the Board of Immigration Appeals issues a decision on Ali's motion to reopen his immigration proceedings. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Patrick J. Schiltz on December 7, 2017. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 17‐CV‐5334 (PJS/KMM)
JEFFERSON BEAUREGARD SESSIONS
III, Attorney General; ELAINE C. DUKE,
Acting Secretary, Department of
Homeland Security; THOMAS HOMAN,
Director, Immigration and Customs
Enforcement; SCOTT BANIECKE,
Director, St. Paul Field Office,
Immigration and Customs Enforcement;
and BRIAN ACUNA, Director, New
Orleans Field Office, Immigration and
Kimberly K. Hunter and John R. Bruning, KIM HUNTER LAW, P.L.L.C.,
Ana H. Voss and Ann M. Bildtsen, UNITED STATES ATTORNEY’S
OFFICE, for respondents.
Petitioner Yonis Ali is a citizen of Somalia who entered the United States in 1995
and was granted lawful permanent resident status as the spouse of a refugee. In 2010,
Ali was ordered removed from the United States after the Board of Immigration
Appeals (“BIA”) determined that he had committed fraud in the course of applying for
refugee status. Ali was not immediately removed from the United States, however,
because Somalia would not agree to accept his return. Instead, Ali was allowed to
remain free under an order of supervision.
Ali was taken into custody by Immigration and Customs Enforcement (“ICE”) in
September or October 2017 after Somalia agreed to accept his return. After being taken
into custody, Ali filed a motion with the BIA to reopen his case and stay his removal.
Ali also filed a habeas action in this Court and moved for a stay of removal and a
temporary restraining order (“TRO”). ECF No. 3 (“TRO Mot.”). That motion is now
before the Court. Because the government received notice of the motion and had the
opportunity to respond, the Court will treat the motion as a motion for a preliminary
injunction. See Fed. R. Civ. P. 65.
In opposing Ali’s motion, the government argues only that this Court does not
have jurisdiction over Ali’s habeas action. See ECF No. 8. Because the Court finds that
it does, in fact, have jurisdiction over one of Ali’s habeas claims—and because the
government has made no other argument in opposing Ali’s motion—the Court grants
Ali’s motion and enjoins respondents from removing him from the United States until
the BIA issues a decision on his motion to reopen.
Ali is a citizen of Somalia. TRO Mot., Ex. I (“IJ Decision”) at 2. On or about
June 20, 1995, Ali entered the United States under the name “Hussein Mohamud,”
purportedly as the spouse of a refugee. Id. Ali was later granted lawful permanent
resident status with a retroactive date of June 20, 1995. Id.
In 2007, the Department of Homeland Security (“DHS”) began removal
proceedings against Ali after discovering that he had committed fraud during his
naturalization process. Id. at 2. While the removal proceedings were still pending, Ali
applied for asylum, for withholding of removal, and for relief under the Convention
Against Torture. Id. at 2‐5. An immigration judge (“IJ”) ordered Ali removed on
June 10, 2010. Id. at 13. The IJ found that Ali was “not credible” because of the
“numerous inconsistencies within his testimony and with prior statements and
evidence submitted by both parties.” Id. at 7. The IJ was thus “unable to determine the
name, birth date, marital status, or clan membership of Mr. Ali.” Id. at 11. The IJ also
made the alternative finding that Ali had failed to show that he suffered “past
persecution” or that he had a “‘well‐founded fear’ of future persecution” in Somalia. Id.
On November 16, 2011, the BIA dismissed Ali’s appeal. TRO Mot., Ex. I (“BIA
Decision”) at 1. The Eighth Circuit denied Ali’s petition for review in 2012. Ali v.
Holder, 686 F.3d 534 (8th Cir. 2012). At that point, Ali had been ordered removed, and
he had exhausted his administrative and judicial remedies. But Somalia would not
agree to accept Ali’s return, so ICE permitted Ali to continue residing in Minnesota
subject to an order of supervision. ECF No. 13 (“Mem. ISO TRO Mot.”) at 2‐3.
In September or October 2017, after ICE learned that Somalia had decided to
accept Ali’s return, ICE took Ali into custody. See ECF No. 8 at 4; ECF No. 9 ¶ 13; ECF
No. 13 at 2. In late November 2017, ICE transported Ali from Minnesota to Louisiana,
in anticipation of removing him to Somalia. ECF No. 9 ¶ 15. On December 1, 2017, Ali
filed a motion with the BIA to reopen his case and stay removal. TRO Mot., Exs. F‐G, J.
Ali seeks to establish that changed conditions in Somalia (namely the rise of Al‐Shabaab
and its persecution of “Westernized” Somalis such as Ali) warrant the reopening of his
immigration case and entitle him to remain in the United States. See id. Both motions
Also on December 1, 2017, Ali filed in this Court a petition for a writ of habeas
corpus under 28 U.S.C. § 2241. ECF No. 1. Ali argues that he “cannot be removed to
Somalia without being afforded a process to determine whether, based on current
conditions and circumstances, the danger he would face entitles [him] to protection
from removal.” Id. ¶ 10.
Ali now moves the Court to enjoin respondents from removing him to Somalia
until the BIA rules on his pending motion to reopen. He argues that failure to stay his
removal will “deprive him of due process of law and violate U.S. law.” Mem. ISO TRO
Mot. at 3. Specifically, Ali argues (among other things) that, if he is deported, he will be
deprived of his statutory right to a decision on his motion to reopen because of the
“departure bar”—a regulation under which Ali’s motion to reopen will be deemed
withdrawn as soon as he is deported. See 8 C.F.R. § 1003.23(b)(1).
Ali’s habeas action is one of five that were filed in this District on December 1,
2017, all on behalf of petitioners whose removal to Somalia was imminent. In all five
cases, the petitioner moved for a TRO to block his removal, and in all five cases, the
government opposed the motion by arguing that the Court did not have jurisdiction
over the habeas action. In four of the cases, judges of this District have agreed with the
government and denied the petitioner’s motion for a TRO.1 This Court agrees with
those decisions on all issues save one, but that disagreement dictates a different result.
To begin, this Court agrees that, on its face, the jurisdiction‐stripping provision
codified at 8 U.S.C. § 1252(g) deprives this Court of jurisdiction over Ali’s habeas
petition. Section 1252(g) provides that:
Except as provided in this section and notwithstanding any
other provision of law (statutory or nonstatutory), including
Adan v. Sessions, No. 17‐CV‐5328 (MJD/BRT), 2017 WL 6001740 (D. Minn. Dec. 4,
2017); Mohamed v. Sessions, No. 17‐CV‐5331 (DSD/BRT), 2017 WL 6021293 (D. Minn.
Dec. 5, 2017); Ibrahim v. Sessions, No. 17‐CV‐5333 (DSD/TNL), 2017 WL 6021314
(D. Minn. Dec. 5, 2017); and Sheikh v. Sessions, No. 17‐CV‐5330 (JNE/HB), 2017 WL
6033674 (D. Minn. Dec. 6, 2017).
section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, no court
shall have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or action by the
[Secretary of Homeland Security] to commence proceedings,
adjudicate cases, or execute removal orders against any alien
under this chapter.
Ali’s claim clearly falls within the ambit of § 1252(g), as Ali’s claim clearly
“aris[es] from” the Secretary’s decision to “execute [the] removal order” by detaining
Ali so that he can be removed to Somalia. See Silva v. United States, 866 F.3d 938, 940
(8th Cir. 2017) (“A claim that is ‘connected directly and immediately’ to a decision to
execute a removal order arises from that decision.” (quoting Humphries v. Various Fed.
USINS Emps., 164 F.3d 936, 943 (5th Cir. 1999))). But for the decision of the Secretary to
execute Ali’s removal order, there would be no threat to his right to receive a decision
on his motion to reopen his immigration proceedings, and there would be no need for
him to seek relief from this Court.
This Court also agrees that, insofar as § 1252(g) deprives this Court of jurisdiction
over Ali’s habeas petition, the statute does not violate the Suspension Clause of the
United States Constitution. See U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.”). The Supreme Court has held that Congress may
deprive federal courts of habeas jurisdiction without running afoul of the Suspension
Clause as long as Congress offers “a collateral remedy which is neither inadequate nor
ineffective to test the legality of a person’s detention.” Swain v. Pressley, 430 U.S. 372,
381 (1977). The Eighth Circuit (and every other circuit to have addressed the question)
has held that the process provided by Congress through the REAL ID Act, Pub.L.
No. 10‐13, 119 Stat. 231 (2005), is “as broad in scope as a habeas petition” and “an
adequate and effective substitute to test the legality of a person’s detention.” Mohamed
v. Gonzales, 477 F.3d 522, 526 (8th Cir. 2007) (citing Swain, 430 U.S. at 381‐82).
Ali contends, however, that under the particular facts of his case, the alternative
process provided by Congress is inadequate and ineffective. Ali argues (and the
government does not dispute) that he has a statutory right to a decision from the BIA on
his motion to reopen.2 Ali further argues that, if he is removed from the United States
before the BIA issues a decision on his motion to reopen, he will never get the decision
to which he is entitled because of the “departure bar” found in 8 C.F.R. § 1003.2(d).
That regulation provides:
See Devitri v. Cronen, No. CV 17‐11842‐PBS, 2017 WL 5707528, at *4 (D. Mass.
Nov. 27, 2017) (“The Supreme Court has characterized [8 U.S.C. § 1229a(c)(7)] as
creating an absolute, non‐negotiable right: ‘[E]very alien ordered removed from the
United States has a right to file one motion to reopen his or her removal proceedings.’”
(quoting Dada v. Mukasey, 554 U.S. 1, 4‐5 (2008))).
Any departure from the United States, including the
deportation or removal of a person who is the subject of
exclusion, deportation, or removal proceedings, occurring
after the filing of a motion to reopen or a motion to
reconsider, shall constitute a withdrawal of such motion.
If Ali is deported, then, his “motion to reopen will be deemed withdrawn.” Dada, 554
U.S. at 18. Thus, Ali argues, he does not have an “adequate and effective” alternative to
habeas relief; he can ask the BIA to change its mind about deporting him but, if the BIA
refuses, he will not have recourse to any judge or other neutral decisionmaker. See
Villalobos v. Holder, 417 F. App’x 610 (8th Cir. 2011) (per curiam) (“We lack jurisdiction
to review the BIA’s denial of a stay because it is not a final order of removal . . . .”).
The problem with Ali’s argument is that every circuit to have considered the
question—and that is virtually every circuit—has found that the departure bar is
invalid. See Toor v. Lynch, 789 F.3d 1055, 1060 (9th Cir. 2015) (collecting cases). The
Eighth Circuit (perhaps alone among the circuits) has not yet ruled on the validity of the
departure bar, but in light of the number and persuasiveness of the decisions from the
other circuits, the Court finds that it is highly unlikely that the Eighth Circuit will
permit the BIA to apply the departure bar in Ali’s case. Ali will get a decision on his
motion to reopen—and he will be able to seek judicial review of any adverse decision—
whether he is deported or not.3 Therefore, Ali has failed to establish that the REAL ID
That fact distinguishes this case from Devitri, 2017 WL 5707528, and Hamama v.
Adducci, 258 F. Supp. 3d 828 (E.D. Mich. 2017), in which courts enjoined the removal of
procedures are inadequate or ineffective to safeguard his right to a decision on his
motion to reopen.
That would be the end of the matter save for one thing: In Jama v. Immigration &
Naturalization Service, 329 F.3d 630 (2003), the Eighth Circuit carved out an exception to
the jurisdiction‐stripping provision in 8 U.S.C. § 1252(g)—an exception that appears to
apply to one of Ali’s habeas claims. The petitioner in Jama was (like Ali) a Somali
citizen who, after being ordered removed from the United States, filed a habeas petition
and asked the district court to block his removal. Id. at 631. The district court
found—and the Eighth Circuit agreed—that it had jurisdiction over the habeas action,
even though the petitioner’s claim arose from a decision by the Attorney General to
“execute removal orders,” and even though § 1252(g) provided that “no court shall
have jurisdiction to hear” any such claim. The Eighth Circuit explained:
Mr. Jama . . . is not objecting to an unfavorable discretionary
decision or action to execute the removal order. Cf. Reno v.
American‐Arab Anti‐Discrimination Comm., 525 U.S. 471,
482‐85, 487 (1999). He challenges, rather, the Attorney
General’s construction of a statute; specifically, the Attorney
General’s legal conclusion that 8 U.S.C. § 1231(b)(2)(E)(iv)
authorizes the INS to remove Mr. Jama to Somalia without
first establishing that Somalia will accept his return. Our
role here (and the role of the district court below) is not to
second‐guess the Attorney General’s exercise of his
discretion; it is to address a purely legal question of
aliens to allow those aliens to file motions to reopen with the BIA. Here, Ali has already
filed such a motion.
statutory construction. . . . We believe, therefore, that Mr.
Jama’s question is simply outside the scope of the
jurisdiction‐stripping provision of § 1252(g).
Id. at 632.
Jama‘s holding appeared to rest on two pillars. First, the Eighth Circuit—like a
couple of other circuits—seemed to interpret Reno to hold that § 1252(g)’s jurisdiction
bar applied only to “discretionary” decisions. See, e.g., Chmakov v. Blackman, 266 F.3d
210, 215 (3d Cir. 2001) (“[Section 1252(g)] limits the power of federal courts to review
the discretionary decisions of the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders.”). Second, the Eighth Circuit noted that
§ 1252(g) as enacted did not explicitly refer to habeas actions and said that “[a]bsent a
‘clear, unambiguous, and express statement of congressional intent’ to the contrary, we
have no reason to assume that Congress intended to preclude the district court’s habeas
review of a pure question of law such as the one presented by Mr. Jama.” Jama, 329
F.3d at 632‐33 (quoting INS v. St. Cyr, 533 U.S. 289, 314 (2001)).
Up until four months ago, there was reason to doubt the continued viability of
the carve‐out created by Jama. Jama is an outlier; as best as the Court can tell, no other
circuit has carved out an exception from § 1252(g)’s jurisdictional bar for a habeas claim
presenting only “a purely legal question.” Id. at 632. Moreover, both of Jama’s two
pillars have been severely undermined over the years. First, the majority of
circuits—including the Eighth Circuit itself—have rejected the notion that § 1252(g) bars
review only of “discretionary” decisions. The Eighth Circuit explained:
Lopez Silva urges that Reno v. American‐Arab
Anti‐Discrimination Committee, 525 U.S. 471 (1999), requires
us to narrow the scope of § 1252(g) to discretionary decisions
of the Secretary. . . . In explaining the history of the
provision, the Court at one point observed that § 1252(g)
“seems clearly designed to give some measure of protection
to ‘no deferred action’ decisions and similar discretionary
determinations, providing that if they are reviewable at all,
they at least will not be made the bases for separate rounds
of judicial intervention outside the streamlined process that
Congress has designed.” Id. at 485. But this reference to
discretionary decisions did not say that § 1252(g) applies
only to discretionary decisions, notwithstanding plain
language that includes no such limitation.
Silva, 866 at 940‐41.
Second, Jama’s concern that § 1252(g) did not explicitly refer to habeas actions
was remedied with the passage of the REAL ID Act in 2005. At the time that Jama was
decided, § 1252(g) provided as follows:
Except as provided in this section and notwithstanding any
other provision of law, no court shall have jurisdiction to
hear any cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal
orders against any alien under this Act.
Hamama v. Adducci, 258 F. Supp. 3d 828, 834 (E.D. Mich. 2017) (quoting statute). But the
REAL ID Act amended § 1252(g) so that it now provides as follows:
Except as provided in this section and notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus provision, and
sections 1361 and 1651 of such title, no court shall have
jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision or action by the Attorney
General to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this chapter.
8 U.S.C. § 1252(g) (amendment emphasized). Congress does not get much clearer than
Notwithstanding these developments, the Eighth Circuit signaled the continued
viability of the Jama carve‐out just four months ago in Silva. 866 F.3d at 940‐41. In Silva,
the plaintiff sued the United States for damages after he had been unlawfully removed
to Mexico. The Eighth Circuit held that § 1252(g) deprived the district court of
jurisdiction over the plaintiff’s claim because that claim arose from a decision by the
Secretary to execute a removal order. In the course of its discussion of § 1252(g), the
Eighth Circuit clarified that Jama “did not hold that § 1252(g) applies only to claims
arising from discretionary decisions.” Id. at 941 (emphasis original). Instead, the Eighth
Circuit said, Jama “essentially carved out an exception to § 1252(g) for a habeas claim
raising a pure question of law[.]” Id. The Eighth Circuit gave no indication that it
questioned the continued viability of this “exception.”
In light of Silva, this Court is bound to find that § 1252(g) does not deprive it of
jurisdiction over a habeas claim that “rais[es] a pure question of law.” Id. And at least
one of the claims made by Ali in his habeas action raises only pure questions of law.
Again, Ali argues:
First, he and every other alien who has been ordered
removed from the United States has the right to file and get a
decision on a motion to reopen his or her removal
proceedings under 8 U.S.C. § 1229a(c)(7).
Second, he and every other similarly situated alien would be
deprived of this right without due process of law if he or she
were to be deported while his or her motion to reopen was
pending by operation of the departure bar found in 8 C.F.R.
And third, because he is in fact being deported while his
motion to reopen is pending, and because the Eighth Circuit
has not declared the departure bar invalid, his custody
violates the Constitution and laws of the United States, and
therefore he is entitled to habeas relief.
Ali’s claim may be right or it may be wrong, but what matters for jurisdictional
purposes is that Ali’s claim presents only “pure questions of law.” In addressing this
particular claim on the merits, this Court need not decide anything about whether
conditions in Somalia have changed or whether Ali will be subject to torture in Somalia
or any other factual issue.4 Therefore, Ali’s claim falls within the “exception to § 1252(g)
for a habeas claim raising a pure question of law.” Silva, 866 F.3d at 941.
The Court would have to resolve factual issues to decide other claims that Ali is
making—such as his claim that his deportation would violate his rights under the
Convention Against Torture—and thus those claims do not fall within the Jama
exception to § 1252(g)’s bar on jurisdiction.
Having satisfied itself that it has jurisdiction over one of Ali’s claims, the Court
would normally address the merits of that claim. But, as noted, the only argument that
the government has made in opposing Ali’s motion for an injunction is the argument
that § 1252(g) deprives the Court of jurisdiction. The Court will therefore treat Ali’s
motion as unopposed and invite the government to move to dissolve the injunction if it
wishes to address the injunction on the merits.
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
Petitioner Yonis Ali’s motion for a temporary restraining order [ECF
No. 3]—which the Court construes as a motion for a preliminary
Respondents, and all of their respective officers, agents, servants,
employees, attorneys, and persons acting in concert or participation with
them, are ENJOINED AND RESTRAINED from removing or causing the
removal of petitioner Yonis Ali from the United States until the Board of
Immigration Appeals issues a decision on Ali’s motion to reopen his
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 7, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?